PIERRE, S.D. (KELO) — The South Dakota Public Utilities Commission has set the schedule for deciding whether to permit a carbon-dioxide pipeline proposed by Summit Carbon Solutions.
The evidentiary hearing will be Sept. 11-22, 2023, with extra days the following week if necessary.
SCS attorneys opposed that schedule, saying a decision was necessary by June 15, then offering August 31.
The commissioners voted 3-0 on Thursday to proceed with the September hearing.
State law says the commission must reach a decision on a transmission pipeline within one year of the application. However, the next section of state law says the commission may extend the deadline upon request of the applicant.
SCS filed its original application on February 7, 2022. On June 1, 2022, SCS sought an extension of the decision. On December 20, 2022, the commission told its staff to look at hearing dates in September 2023.
Attorneys for the various sides and the commission met Tuesday morning to work out a schedule.
Commission counsel Karen Cremer said they agreed on the September 11-22 plan. But SCS attorney Brett Koenecke of Pierre told the commission that wasn’t true.
“We most certainly did not agree to that schedule this morning,” Koenecke said. He had filed a letter on Tuesday saying a decision must be reached by June 15, 2023.
There wasn’t a decision date in the September schedule, Koenecke said. “The date for the issuance of the permit is very integral to consturciton and financing planning among other things,” he said.
Attorney Brian Jorde of Omaha is representing landowners along the proposed route through South Dakota who are opposed. He said Koenecke had submitted a letter but hadn’t filed a motion.
”The only reason we’re here is because they weren’t able to get their work done,” Jorde (pronounced JOR-dee) said. He argued that SCS hadn’t followed the law on notifying landowners along the route. “They have a series of problems all to their own making,” Jorde said.
Regarding the one-year law, Jorde said it doesn’t say the commission must follow what the applicant says. He said the applicant sought an extension. “Summit did that for whatever reason and now the commission can extend the deadlines to whatever it wants,” Jorde said.,
Commission chair Chris Nelson asked Koenecke whether SCS would be amenable to the September hearing schedule if the commission added a deadline for the decision. Koenecke turned him down.
“We have said repeatedly for months we need a decision by June 15 and we need to stick to that,” Koenecke replied, adding that the company had supported an earlier version of a schedule that the commission staff had proposed, with a hearing of April 24-May 5, 2023. “I do not have authority to deviate from that position,” Koenecke said.
Commissioner Gary Hanson said his understanding of state law in this instance was the applicant would have to seek an extension if the commission needed more time to reach a decision. Otherwise, Hanson said, the commission would have to deny the permit.
Regarding the SCS position that a decision is needed by June 15, Hanson said, “I don’t know how it can be done in that period of time based on the road we’ve gone down so far.” He spoke in support of the September hearing. “I don’t see another route, other than the suggested process and timeline that has been handed to us at this time.”
State Treasurer Josh Haeder has been serving as the third commission’s third member on the SCS docket because commissioner Kristie Fiegen recused herself, citing a conflict of interest. Haeder asked the commission’s counsel, Cremer, for her interpretation of the one-year law. She replied, “I am of the opinion that that statute – we have done exactly what that statute says…It’s well within our discretion to have extended as we did.”
SCS attorney Koenecke, who was calling into the meeting, asked for a five-minute recess. When the meeting resumed, he asked another Pierre attorney, Aaron Scheibe, and SCS chief operating officer Jimmy Powell to speak.
Jorde objected to Powell taking the microphone, saying the agreement throughout the day had been that attorneys would speak for their clients. Nelson sustained the objection. That left Scheibe (SHY-bee) to offer August 31 as the date for a final decision.
Jorde argued that commission staff would need 60 to 90 days or more to read through the material and said there aren’t dates available. He also noted that he, Koenecke and others involved in the docket would be in court April 24-25 on a project-related matter. Jorde said the commission has the power to set dates that work for the commissioners.
Commission staff attorney Kristen Edwards said the staff members would do everything necessary to accommodate August 31 if that would work for them.
Commissioner Hanson said meeting the August 31 deadline would mean having to get started in early February. He didn’t see how that could work.
That left chair Nelson to call for the September schedule. “This is a big deal – a big deal for the applicant and a big deal for the affected landowners,” Nelson said. “We got to make sure we get it right.”
Nelson said he spent Wednesday listening to the 2019 legislative testimony which proved to be “no use’ in understanding the statute. Nelson said voting no on the permit wasn’t a good option for anybody and that the word “may” in the law gives the commission discretion. “That discretion means we have to be judicious in how we use that,” he said. “We have to consider all of the circumstances involved.”
Those could be other dockets and lawyers’ schedules, Nelson said. He called it “unfortunate” that Summit wouldn’t get an answer as soon the company would like. Then he noted that Summit was sending notifications, for the first time, to 50 more landowners this week.